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California's Other “Dual System”: Coordinated Management of Groundwater and Surface Water

Among water lawyers, California is known for its “dual system” of surface water rights. Not being content with a system of riparian rights, like most states in the eastern United States, nor being content with a system of appropriative rights, like most states in the western United States, California determined early on that it would recognize both types of rights. Similarly, in the case of rights to groundwater, California developed a dual system. Lands overlying an aquifer have correlative rights; lands located away from an aquifer have appropriative rights. The subject of this paper is California's third “dual system”: the manner in which rights to surface water and groundwater relate—or fail to relate—to each other.

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Professor Robert Glennon's recent book Water Follies argues that one of the chief causes of the overuse of groundwater resources in the United States is the fact that groundwater and surface water are subject to different legal regimes. Professor Glennon states: “[t]he laws regulating groundwater pumping often flout the scientific principles of hydrology.”2 Professor Glennon makes two distinct claims. First, he concludes that, generally, states treat groundwater as a separate resource from surface water, causing a disjointed, uncoordinated legal regime.3 Second, he uses the case studies in his book to argue that the separation of thes

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